ANVVAR ZAHEER JAMALI, J.--- The applicant, Mir Ghulam Hyder Khan Talpur (now represented through its legal heirs) has preferred this Civil Revision Application under Section 115, CPC against the judgment and decree dated 15.1.2001 and 8.2.2001 respectively passed by learned IIIrd Additional District judge, Hyderabad in Civil Appeal No 151 of 1999, whereby he allowed such appeal, set aside the judgment and decree dated 16.10.1999 and 3.11.1999 respectively, passed by learned 1st Senior Civil Judge, Hyderabad in F.C. Suit No. 324 of 1993, and decreed le suit of respondent No. 1.
2. Briefly stated, the facts leading to this litigation re that on 13.9.1993 respondent No 1 instituted a uit for partition, separate possession, permanent junction and compensation against the applicant in spect of property bearing C.S. Nos. 34/128, 34/129, 4/130 and 34/131 total admeasuring 311-01 sq.Yds. situated in Amil Colony, Ward-A, Hyderabad hereinafter referred to as "suit property") claiming herein 33 paisa ownership share. She pleaded such tie in the suit property by way of oral gift in her favour from her husband and joint undivided possession with applicant as other co-owner, and prayed for following reliefs:--
(a) That this Honourable Court may be pleased to pass decree for partition and separate possession of property in suit and order the defendants to put the plaintiff in separate possession of her share of 33 paisa in property in suit by separate metes and bounds.
(b) That this Honourable Court may be pleased to issue permanent injunction against the defendants restraining them from transferring or encumbering the property in suit in any manner whatsoever and from making any changes in construction of property in suit.
(c) That this Honourable Court may be pleased to order defendants to pay the compensation for use and occupation to the plaintiff from August, 1993 at the rate of Rs. 2,000/- per month to the plaintiff till the plaintiff is put in separate possession of the property in suit.
(d) Cost of suit be borne by the defendant.
(e) Any other relief.
3. On filing of written statement dated 26.9.1993 oy the applicant it came to the knowledge of respondent No. 1 that applicant had entered into an agreement of sale dated 20th January, 1992 with respondent No. 2, therefore, an application for joining respondent No: 2 as party to the suit was filed by respondent No. 1 on 19.1.1994, which was allowed vide order dated 16.10.1994 and consequently amended plaint joining the respondent No. 2 as defendant No. 2 in the suit was filed in the suit on 26.10.1994.
4. In his written statement applicant Mir Ghulam Hyder Talpur raised several legal pleas challenging the maintainability of the suit. He also denied the claim of respondent No. 1 in respect of suit property to the extent of her 33 paisa share, on the premises that initially he had purchased the suit property in his ,exclusive name in the year 1963 by a registered deed. Thereafter in the year 1964 under a family arrangement it was gifted to his father and two brothers Mir Ghulam Sarwar Talpur and Mir Ghulam Akbar Talpur, the husband of respondent No. 1, but lateron such proposal did not materialize, therefore, there was no acceptance of gift or delivery of possession. However, mutation of gift, was effected in the revenue record on 26.3.1964. The applicant thus pleaded exclusive ownership of suit property in his name and in his regard also made reference to the subsequent gifts made by his father Mir Rasool Bux and brother Mir. Ghulam Sarwar in his favour in the year 1983, whereby 67 paisa share in the suit property was reverted in his favour. He also stated about the agreement of sale of suit property with respondent No. 2 in terms of the agreement of sale-deed 20th January, 1992.
5. The respondent No. 2/defendant No. 2 in his written statement supported the claim of the applicant/defendant No. 1 and justified the agreement of sale dated 20th January, 1992 in his favour for valuable consideration of Rs. 8,75,000/-, of which Rs. 6,50,000/-, have already been paid by him to the applicant. He also pleaded that vacant physical-possession of the suit property was handed over to him and he is in exclusive possession of suit property in pursuance of such agreement of sale. The respondent No. 2 also made reference to another additional agreement of sale dated 25th May, 1992 and filed photostat copies of such agreements alongwith his written statement.
6. On the above pleadings of the parties learned 1st Senior Civil Judge, Hyderabad framed following issues in the suit on 4.7.1995.
(1) Whether the suit is not maintainable in law? (2). Whether the suit is time-barred
(3) Whether the suit is not in proper form?
(4) Whether the suit is under valued?
(5) Whether the plaintiff is owner of 33 paisa share in the suit property?
(6) Whether the plaintiff is in joint possession of the suit property with the defendant?
(7) Whether the gift of 1/3rd share of the suit property to Mir Ghulam Akbar husband of the plaintiff, by plaintiff was illegal and the same was valid gift, and binding of the plaintiff?
(8) Whether Mir Ghulam Akbar made gift in favour of his wife, the plaintiff is legal, valid and having force in the eyes of law?
(9) Whether the defendant is complete legal owner of. The property and continues to be in possession of the same?
(10) Whether the defendant is entitled for the compensation if yes, what rate and period?
' (11) What should the decree be?
7. At the stage of evidence, from the side of respondent No. 1/plaintiff, she examined her husband and attorney Mr, Ghulam Akbar Talpur as Ex.67, who produced documents Ex.68 to 73/A, and her side was closed by statement Ex.74, dated 8.7.1997. The applicant/defendant No. 1 in his evidence examined himself as Ex.80 and produced documents Ex.81 to Ex.96 and his side was closed vide statement Ex.97, dated 10.4.1998.
8. From the side of respondent No. 2/defendant No, 2, he examined himself as Ex.100 (as stated by learned counsel, in the deposition form his name was wrongly typed as Riaz Muhammad) and his side was closed vide statement Ex.101, dated 15.5.1999.
9. The learned 1st Senior Civil Judge, Hyderabad after hearing the arguments of learned counsel for the parties passed the impugned judgment dated 16,10,1999 wherein he recorded his findings on various issues against respondent No. 1 and consequently dismissed her suit with no order as to costs
10. The respondent No. 1, challenged the judgment referred above by preferring Civil Appeal No. 151 of 1999 before the District Judge, Hyderabad, which was heard by learned 3rd Additional District Judge, Hyderabad, who by his impugned judgment reversed the findings of the lower Court on various material issues in favour of respondent No. 1 and consequently allowed the appeal and decreed her suit.
11. I have heard the arguments of learned counsel for the parties at length.
12. Mr. Naimatullah Soomro learned counsel for the applicant after giving detailed facts about the case of the parties vehemently contended that the applicant had never accepted the validity of the original gift purportedly made by him- in favour of his father Mir Rasool Bux and two brothers Mir Ghulam Sarwar and Mir Ghulam Akbar on the grounds that it was made under a family arrangement which did not materialize and that there was no acceptance of such gift by the donees or delivery of possession to them which were the two pre-conditions for the validity of such gift, therefore, the claim of respondent No. 1 under the subsequent gift dated 13.10.1991, which flows from the original gift of 1964 is void and not tenable in law. He urged that the burden of proof as to the validity of gift pertaining to the year ,1964 was heavily' on the shoulders of respondent No. 1/plaintiff but she even did not bother to appear herself in the witness-box. He further urged that non-appearance of the plaintiff in the witness-box, without any valid reason to support her own claim is fatal to her case and such position is not changed due to the examination of her husband and attorney. As to the question of non-delivery of possession learned counsel submitted that the burden of proof that whether at any point of time possession of any portion of gifted property was delivered to the husband of respondent No. 1 was also on the plaintiff side but except the oral word of Mir Ghulam Akbar, attorney of respondent No. 1, no witness of the locality was examined or any other material was brought on record to substantiate such claim. Learned counsel also strongly disputed the plea of joint possession raised by the plaintiff in this regard. Reverting to the question of maintainability of the suit he contended that the power of-attorney on the basis of which suit was instituted by respondent No. 1 through her husband was not in accordance with the requirement of Order 3, Rules 1 and 2, CPC and Rule 85 of Sindh Civil Court Rules, therefore, the suit was not maintainable in law. He also submitted that the suit was hopelessly time-barred as respondent No. 1 had never remained in possession of the suit property and no valid gift was executed in her favour by her husband without delivery of possession. Learned counsel also made reference to documents Ex.86, an affidavit purportedly executed by Mir Rasool Bux father of the applicant, to substantiate his claim about the ostensible nature of the gift entry of 1964 in the city survey record, which, according to him, otherwise also does not confer any title or interest in favour of the party, as the factum of ownership is to be proved independently. In support of his arguments as to the proposition of burden of proof and legal value of entries in the record of rights learned counsel placed reliance on the following cases.
(1) National Bank of Pakistan v. Wadhu Mal through His Legal Heirs and 2 others (1985 CLC 1053).
(2) Amirullah through Legal Heirs v. Surat A.I and 17 others (PLD 1991 Pesh. 29).
(3) Abdul Nabi and 29 others v. Jan Muhammad and 26 others (1998 CLC 1842).
(4) Muhammad lshaq and another v. Mst. Gazala Riaz and 8 others (1997 SCMR 974).
(5) Mst. Bibi Sayera v. Misri Khan and others (2002 CLC 300).
13. In the first case, which was a rent case, it was held that issues are to be decided by preponderance of evidence and where there is a word against word in evidence, party on whom burden lies, must fail. In the second case, with reference to Article 118 of Qanun-e-Shahadat Ordinance, 1984, relating to the burden of proof, it was observed that a party could only succeed on the strength of his own case, both oral and documentary, and could not avail of the weakness of opponents case, even if there was any. In the third case, it was observed that it is well-settled principle of law that entries in the Record of Rights do not confer any right/title but only carry a presumption and the party in whose favour such entries are recorded has to establish its title by adducing evidence. It was also observed that in case there are conflicting judgments of the Trial Court and Appellate Court then judgment of 'Appellate Court is to be given .Weight unless same was not supported by legal evidence or was based on surmises and conjectures. In the forth case, it was held that it is a well-settled legal principle that mutation is not a document of title. In the last case, view that mutation is not a deed of title was reaffirmed.
14. Mr. Soomro also argued that the overall assessment of oral evidence adduced by the parties goes to show that there is only word against word and in such circumstances following the dictum laid down in the case of M. Saeed Sehgal v. Kazi Khurshid Hassan, Proprietor India Film Bureau (PLD 1964 SC 598), the party on whom the burden of proof lies must fail. In the context of non- maintainability of the suit with reference to the power-of-attorney executed by respondent No. 1 in favour of her husband Mir Ghulam Akbar and legal value of evidence of attorney in the absence of evidence of the party, learned counsel placed reliance on the two following cases:-
(a) Abdul Hameed Khan v. Mrs. Saeed Khalid Kamal Khan and others (PLD 2004 Kar. 17),
(b) Mehboob Alam v. Miss Tehseen Shafqat Khan and others (PLD 2001 Kar. 238).
15. In the former case it was held by learned Single Judge of this Court that mere mentioning of name of the attorney in the title of the plaint was not enough to prove that the suit was competently instituted as title of the suit can never be treated as part of the plaint. It was further observed that when the fact of authorization through power-of-attorney was not pleaded in the plaint then the signatory of the plaint was not authorized to sign and verify the plaint and consequently suit was not instituted competently. In the latter case which was a rent case relating to the ejectment proceedings on the ground of personal need of the landladies it was held that examination of attorney in the absence of direct ascertain of landladies for their requirement was not sufficient to prove the plea of personal need of the landladies.
16, In the end learned counsel criticized the judgment of the Appellate Court against the applicant on the grounds of misreading and non-reading of evidence and that the procedure as prescribed by Order, 41 Rule 31 was not followed by the Appellate Court inasmuch as instead of framing the points for determination in appeal and deciding it, the Appellate Court had opted to discuss the case issue wise as contemplated and provided under Order 20, Rule 5, CPC, which regulates the procedure before the original -Court, Learned counsel was, however, unable to demonstrate from the record any particular instance of misreading or non-reading of evidence by the Appellate Court or that any prejudice was caused to the applicant due to the failure of the Appellate Court in following the produce prescribed under Order 41, Rule 31, CPC and deciding the appeal on the basis of its issue wise findings,
17. Mr. Abdul Hai Khan Pathan, Advocate for respondent No. 2 adopted the arguments of Mr. Naimatullah Soomro, as noted above, with the addition that despite joining respondent no. 2 as defendant No. 2 in the suit in terms of the order dated 16.10.1994, the respondent No. 1/plaintiff has not sought any further amendment in the plaint to seek any relief against him. He also urged that in view of the valid subsisting agreement of sale executed between the applicant and respondent No. 2, coupled with payment of substantial amount towards sale consideration and delivery of possession, valuable rights have been created in favour of respondent No. 2 and due to the failure of respondent No. 1 in seeking any relief in this regard her suit against respondent No. 2 must fail.
While concluding his arguments, without prejudice to his earlier submissions, he also extended an offer on behalf of respondent No. 2 that heirs willing to pay 1/3 share of agreed sale consideration amount directly to respondent No. 1 if -she agrees to abide by the terms of the two sale agreements executed in his favour by applicant, to the extent of her share in the suit property
18. Conversely, Mr. Jhamat Jethanand, Advocate for respondent No. 1 referred to the undisputed documents placed on record by the parties to demonstrate the falsity of the case set up by applicant to defeat the lawful claim of respondent No. 1 to the extent of her 33 paisa share in the suit property. Referring to the certified true copies of city survey extracts brought on record by the parties as Ex.59 to Ek.69/C and Ex.82 to Ex.85 he contended that perusal of these documents shows that it is undisputed position that gift in respect of the suit property had taken place in the year 1964 in favour of Mir Rasool Bux Talpur, Mir Ghulam Sarwar and Mir Ghulam Akbar. This fact is further confirmed from other documents produced by the parties which show that two of the earlier donees Mir Rasool Bux and Mir Ghulam Sarwar had subsequently made another gift to the extent of their joint 67 paisa share in the suit property in favour of applicant on 29.1.1983 and on that basis applicant has again acquired title in the suit property to that extent. He also made reference to the sale agreement dated 20th January, 1992 executed by applicant Mir Ghulam Hyder Talpur wherein he had categorically stated about the ownership of suit property in favour of Mir Ghulam Akbar vide gift entry dated 25.3.1964 and his ownership in the suit property to the extent of 67 paisa share on the basis of subsequent gift dated 29.1.1983. Learned counsel also made reference to the photostat copy of another sale agreement of same date viz. 20th January, 1992 which was got produced through applicant in his cross- examination as Ex.96 to show that in this agreement, photostat copy whereof was filed by the applicant alongwith his written statement, it was clearly stated and conceded by applicant that respondent No. 1's predecessor-in-interest/husband Mir Ghulam Akbar was owner of 33 paisa share in the suit property. He urged that it was for this reason that dishonestly such original agreement was not placed on record at latter stage and another agreement of same date was got prepared and produced in Court as Ex.93. With reference to the affidavit Ex.86 filed by the applicant in Court, he contended that the genuineness of this document was seriously questioned by the respondent No. 1 but the applicant did not bother to prove the execution of this document as per the requirement of relevant provisions of Qanun-e-Shahadat Ordinance, 1984, by examining the attesting witnesses of the agreement, the person who had attested this document or the scribe of the document.
19. Mr. Jhamat Jethanand contended that as a matter of fact the Court of learned 1st Senior Civil Judge had wholly misunderstood the case of the parties and based its finding on conjectures and misreading of evidence but all these illegalities have been cured by the Appellate Court in its impugned judgment, wherein correct legal position on various law points has been visualized and the evidence adduced by the parties has also been properly assessed. Replying to the arguments of Mr. Soomro with reference to the validity of the power-of-attorney executed by respondent- No. 1 in favour of her husband Mir Ghulam Akbar, learned counsel contended that no specific plea in this regard was raised by the applicant or respondent No. 2 in their written statement and in any case there. Was no material legal defect in the power-of-attorney which could disentitle the husband of respondent No. 1 from instituting or pursuing the proceedings in the suit on her behalf. He also made reference to the record of the Appellate Court to show that before the Appellate Court, the respondent No. 1 has placed the copy of press release dated 20th July, 1994 on record to show that even the stamp duty paid on the power-of-attorney executed on 4.9.1993 was proper, as required on general power-of-attorney and that such position was approved by the Appellate Court by its order passed on such application.
20. Dilating upon the legal position as to the co-ownership. Vis-a-vis joint possession of co-owners, learned counsel contended that legally possession of one co-owner is deemed to be possession of all co-owners unless hostile exclusion of possession of other co-owner was proved to his knowledge by some strong and undeniable evidence, which is lacking in this case. In this regard he placed reliance on the cases reported as:--
(a) Moolchand and 9 others v. Muhammad Yousuf (Udhamas) and 3 others (PLD 1994 S.C. 462),
(b) Qadir Bakhsh and another v. Mst. Shahal and 7 others (2001 MLD 686), and
(c) Mst. Slabo Bibi and 3 others v. Gul Rehman and 13 others (PLD 1996 Pesh. 01).
21, In the first case, it was held that possession of one co-heir is sufficient to be considered as possession of all co-heirs and plea of adverse possession cannot be raised again co-heirs unless there is express repudiation of title of such co-heirs. In the second case, it was held that mere possession however long may be cannot be construed as adverse against co-sharers, as possession of one co-sharer is possession of other co-sharers. The third case, which related to inheritance dispute, it was held that when the mutation was not legal and proper then the entire structure built on it will crumble and limitation will not be hurdle in the way of the party seeking relief.
22. Mr. Jhamat Jethanand lastly contended that there is overwhelming documentary evidence on record to prove the validity of the gift pertaining to the year 1964 made by the applicant in favour of Mir Ghulam Akbar and two others and in such circumstances oral evidence led by the applicant to dispute this position is liable to be ignored by virtue of Articles 102 and 103 of the Qanun-e- Shahadat Ordinance, 1984. On the point of possession he also made reference to certain other documents placed on record by the attorney of respondent No. 1 in his evidence as Ex.70 to 73/A to show his name, name of respondent No. 1 and applicant, in the Form PT-I and payment of property tax by the husband of respondent No. 1 for the years 1988-89 to 1994-95 in the year 1993 and 1994.
23. I have carefully considered the arguments advanced by learned counsel and with their assistance perused all oral as well as documentary evidence adduced in the case. From the perusal of parties pleadings it is evident that the factum of gift made by applicant Mir Ghulam Hyder Talpur in the year 1964 in favour of his father Mir Rasool Bux and two brothers Mir Ghulam Sarwar and Mir Ghulam Akbar has not been denied by him but such gift was linked to a vague family settlement whereby, to compensate the applicant certain agricultural lands and cash amount was to be given to him, not disclosing that by whom and in what manner. Further not disclosing that for what reason and when such alleged family settlements failed and did not materialize. The plea of non-acceptance of gift and nondelivery of possession has also been raised in the same. Context. In other words the applicant has not disputed the fact that on record gift was made by him in favour of his father and two brothers including Mir Ghulam Akbar in the year 1964 and such entry was duly made in the city survey record to his knowledge. In such circumstances, plainly, heavy burden of proof as to the different alternate pleas raised by the applicant to elude, avoid and encounter such old gift of 1964 was upon him -and not on the respondent No. 1 as contended by Mr. Naimatullah Soomro. Had it been a position where the applicant had denied the existence o such gift in toto and showed his ignorance and lack of knowledge about such old entries of gift. In the City Survey Record then the arguments of Mr. Soomro that the burden of proof as to the validity of such gift was on the respondent No. 1 or her husband Mir Ghulam Akbar would have held the field. Keeping in mind this legal position when the crucial point as to the validity or otherwise of the gift dated 25.3.1964 is examined it is evident that gift in favour of all the three donees, including Mir Ghulam Akbar was validly made at that time and it was for this reason that when the two other donees Mir Rasool Bux and Mir Ghulam Sarwar wanted to return their share in the suit property to the applicant they had to re-gift it in favour of applicant Mir Ghulam hyder in the year 1983, but it was not done by third donee Mr. Ghulam Akbar. If there was any family arrangement as urged by the applicant then noncooperation and non-making of gift by the third donee Mir Ghulam Akbar in the year 1983, as against gift made by two other donees of 1964 gift, would have been an eye-opener for the applicant to realize the correct legal position and title of Mir Ghulam Akbar in the suit property to the extent of his share. This aspect gains more importance considering the fact that applicant himself was an Advocate. There is overwhelming documentary evidence available on record, not only produced by the respondent No. 1 but by the applicant himself to show that applicant had been all along conceding to this position prior to the filing of his written statement. Reference in this regard may be made to certain relevant portions of documents Ex.93 and 96, duly executed by the applicant, which are reproduced as under:--
(1) Mir Ghulam Akbar s/o Mir Rasool Bux, Muslim, adult.
(2) Mir Ghulam Hyder s/o Mir Rasool Bux, Muslim, adult.
Both residents of 34/128, 129, 130 and 131, Ward "A" Amil Colony, Hirabad Hyderabad Sindh.
No. 2, for self and as General Attorney of No. 1. Vide General power-of-attorney. The Principal Executant is still alive and the power of-attorney is also still in force, hereinafter jointly and collectively called the "vendors" and the party of the first part.
"WHEREAS" the vendors above-named just prior to this sale are the joint owners of residential house bearing C.S. No. 34, 128, 129, 130 and 131, total area 6.150 sq.Ft., situated at Amil Colony, Hirabad Hyderabad Sindh, hereinafter referred to as the said "house". The same has been acquired by the vendors by virtue of gift and such mutation in the City Survey Record, has been effected on 25.3.1964 and 29.1.1983, respectively, and separate certified true copies of the City Survey Extracts have been issued in their favour by the Mukhtiarkai and City Survey Officer, Hyderabad Sindh."
Ex.96: Whereas the seller above-named holds a share of 67 paisa in the said house and the remaining 3 paisa share is owned by his brother Mr. Mir Ghulam Akbar s/o. Mir Rasool Bux Talpur and whereas as per the advise of father, his brother will transfer/shift his share of 33 paisa in favour of the seller above-named within a period of 6 months hereinafter."
24. Moreover, perusal of document Ex.93 further reveals that applicant had also dishonestly posed himself to be the attorney of his brother Mir Ghulam Akbar, which creates serious doubts about his credibility and truthfulness.
25. The submissions of Mr. Jhamat Jethanand with reference to the authenticity of Ex.86 has also much force as burden of proof as to the genuineness of this document, was also on the applicant, but he did not bother to examine any witness in this regard.
26. It will be pertinent to mention here that the question of validity of gift pertaining to the year 1964 vis-a-vis its alleged non-acceptance and non-delivery of possession is to be examined with reference to that period and not with reference to the fact that who was or had been in exclusive possession of the suit property thereafter or in the year 1991-92 onwards. In this regard too heavy burden was upon the applicant to show that the gift was not accepted by the donee or that possession was not delivered to him at that time. The suggestion in this regard made to the donee Mir Ghulam Akbar was strongly disputed by him, therefore, mere word of applicant in his evidence to this effect would not be sufficient to discharge the heavy burden of proof of these facts. As a matter of fact in the given facts and circumstances rule laid down in the case of M. Saeed Sehgal (supra) and National Bank of Pakistan (supra) operates against the applicant..
27. It is well-settled principle of law that presumption of possession goes with the ownership, unless the contrary is proved by some positive evidence and further possession of one co-owner is deemed to be for and on behalf of all the co-owners, unless the person in possession could bring some solid evidence on record to show his exclusive and hostile possession against other co- owners to their notice and knowledge. In this regard too the applicant has failed to bring on record any evidence except his oral word. As against this the attorney of respondent No. 1 in his deposition has not only made a categorical statement for remaining in possession of the suit property right from the date of gift in the year 1964 till the year 1992, but he has also placed on record. Certified true copies of Form PT-I and property tax payment challan (Ex.70 to 73/A) showing him and respondent No. 1 to be in possession of the property as co-owners and also making payment of property tax as such. The above discussion leads me to an irresistible conclusion that the attorney of respondent No. 1 was validly gifted 33 paisa share in the suit property by the applicant in the year 1964 and he was also along enjoying such title in the suit property till he gifted the same to his wife in the year 1991. As to the legality or genuineness of the gift made by Mir Ghulam Akbar in favour of his wife, the respondent No. 1, suffice it to observe that once the title of the original owner/donee Mir Ghulam Akbar is established and he concedes to such gift in favour of his wife then the applicant or respondent No. 2 have no locus standi to dispute the genuineness of such gift on any account. In addition to it, applicant himself has admitted such gift made by Mir Ghulam Akbar in favour of his wife, the respondent No. 1.
28. With reference to the above discussion, I have also perused the findings of the Appellate Court on various factual issues and seen that the Appellate Court has properly assessed the evidence adduced by the parties in the suit, touching each and every relevant aspect of the case properly and rightly answered all the issues of facts in favour of respondent No. 1.
29. Reverting to the legal aspects of the case with reference to the cases cited by Mr. Soomro, as observed above, I find no substance in the arguments of Mr. Soomro that by power-of-attorney (Ex.68) no proper authority was conferred by respondent No. 1 to her husband for institution of this suit. As a matter of fact, with all due respect, which I have for my learned brother Muhammad Moosa K. Leghari, J. I am unable to subscribe to his view taken in the case of Abdul Hameed Khan (supra) relating to the power-of-attorney and mode of appearance through authorized agent, as noted above. The short reason being that all procedural laws are meant to foster the cause of justice and not to thward it. More important is substantial compliance of procedural laws and not its technical observance (see PLC) 1963 SC 382). Even in a situation where authorization is legally defective, but curable, in, appropriate cases, opportunity can be afforded to a party to remove such legal defect or even seek ratification of his acts by following the doctrine of ratification (see Section 196 of the Contract Act, 1872), as such liberal view in the procedural matters will save the party from technical knock-out and promote the cause of justice, which is the primary, object of this judicial system. Similarly the view taken in the case of Mahboob Alam (supra) regarding the effect of non-appearance of landladies in support of their claim of personal use of rented premises has also no relevancy or applicability to the present case due to different nature of reliefs sought in the present case. As a matter of fact looking to the case of respondent No. 1 from any angle evidence of her attorney and husband Mir Ghulam Akbar was more natural, material and important, as he had more knowledge of relevant facts than the respondent No. 1, who was not party to the gift of 1964 in favour of Mir Ghulam Akbar, which was basically disputed by the applicant. In the facts and circumstances discussed` above, the other cases referred by Mr. Naimatullah Soomro also render no help to the case of applicant.
30. I also find no force in the submission of Mr. Jhamat Jethanand raised with reference to the findings of two Courts below on issue No. 4 regarding payment of court-fee. Once the plaintiff/respondent No. 1 has herself opted to put specific valuation of her share in the suit property instead of putting up tentative valuation of her share in the plaint then she was required to pay court-fee accordingly, as has been rightly ordered by the two Courts below. The objections of Mr. Soomro that due to the non-payment of court-fees within 15 days time, as ordered by the lower Court there was no plaint before the lower Court, therefore, the appeal could not have been maintained has also no force for the reason that such judgment was challenged by respondent No. 1 in appeal and that during the pendency of such proceedings further time was allowed by the Appellate Court to the respondent No. 1 for payment of court-fee which was accordingly paid.
Needless, to observe that even otherwise parties to litigation cannot be denied their legitimate claim on such hypertechnical ground which would serve no other purpose but to defeat the ends of justice.
31. As to the issues of limitation and non-proper form of the suit also, I have examined the case record and seen that the suit instituted by respondent No. 1 was in proper form and looking to the nature of the reliefs claimed in the suit no question of limitation was involved in the matter.
Reverting to the submissions of Mr. Abdul Hai Khan Pathan, suffice it to observe that once respondent No. 1 is found to be lawful owner of the suit property to the extent of her 33 paisa undivided share, vide declaration of gift dated 13.1.1991 through her husband Mir Ghulam Akbar Talpur, any transaction of sale of her share made by an unauthorized person or delivery of possession in unlawful manner and without her consent would not deprive her from claiming her own rights in the suit property with all other consequential reliefs such as compensation for unauthorized use and occupation as rightly awarded by the Appellate Court, and all subsequent superstructure of rights created in favour of respondent No. 2, which is in conflict to the interest of respondent No. 1 would collapse automatically. To fortify this legal position reference may be made to the case of Yousuf All v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104). In addition to it, it may be observed that the Court while dealing with a' situation like the one involved in this case, is not denuded of its power for granting further relief in the matter to meet the ends of justice, even if such relief is not specifically prayed in the plaint. In this view of the matter I am fortified with a recent judgment of Honourable Supreme Court of Pakistan in the case of Mst. Arshan Bi through Mst. Fatima Bi and others v. Moula Bakhsh through Mst. Ghulam Safoor and others (2003 PSCC 475) wherein it was observed that the denial of relief to a party simply on the ground that consequential relief was not claimed would, in no circumstances, advance the cause of justice. It has been held time and again that the natural result of declaration would be that consequential relief has to be given by the Court even if it is not claimed. Referring to another case (PLD 1975 SC 678), it was further observed that mere technicalities, unless offering insurmountable hurdles, should not be allowed to defeat the ends of justice. To further fortify this legal position, following view expressed by Honourable Justice Kaikaous in the case of Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382) was also reproduced with advantage: "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I. Do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant of the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on the ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defect. Any system which by giving effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
32. In view of the foregoing discussion and the fact that there is no misreading or non-reading of evidence, jurisdictional defect or any other legal infirmity in the impugned judgment passed by the Appellate Court, the impugned judgment and decree are unexceptionable and this Civil Revision is liable to be dismissed. Order accordingly.
33. Before parting with this order I would like to observe that by moving an application C.M.A. No. 158 of 2003 respondent No. 2 has prayed for his transposition as applicant No. 2 instead of respondent No. 2. In my view once the respondent is duly represented in this revision application .
Such transposition would hardly make any difference. However, the submissions of Mr. Jhamat Jethanand in this regard that by the time respondent No. 2 had moved this application his right to prefer revision application against the order of the Appellate Court had become time-barred, has much force. For the reason C.M.A. No. 158 of 2003 is dismissed.
34. In view of this judgment the other two applications listed today, have become infructuous and the same are also dismissed. .